Curators ad litem appointments in family actions

New Rules relating to the appointment of curators ad litem to defenders in family actions will come into force in both the Court of Session and sheriff court on 1 June 2017.

A curator ad litem is a person appointed by the court to look after the interests of a party to proceedings who is under legal disability but has no guardian.

The Rules were developed by the Council’s Family Law Committee, following a joint proposal from the Mental Welfare Commission for Scotland (MWCS) and the Scottish Government.

They insert a definition of incapable and remove the requirement for the MWCS to provide a report for the court. Instead, it will be the responsibility of the curator ad litem to submit a report, based on medical evidence, "stating whether or not, in the opinion of a suitably qualified medical practitioner, the defender is incapable of instructing a solicitor to represent the defender’s interests". The Rules also oblige the curator to periodically review the need for their appointment to continue. Stigmatising terminology such as “suffering from a mental disorder” has been removed and replaced simply with “has a mental disorder”.

The Rules of the Court of Session and the Ordinary Cause Rules have also been brought into alignment in two respects, by:

widening the scope for appointment of curators in the Court of Session to encompass family and civil partnership actions generally, as is the case in the sheriff court. (Appointments in the Court of Session were formerly restricted to actions of divorce, dissolution or separation.)

providing for the sheriff to appoint a curator after the expiry of the period for lodging a notice of intention to defend. This matches the existing provision in the Rules of the Court of Session that a curator shall be appointed after the expiry of the period for lodging defences.

The instrument also amends the simplified divorce and dissolution forms, to achieve consistency in the questions asked about mental disorder.